Anti-Adani coal mine protesters express their support for Ben Pennings (Image: AAP/Darren England)

In a decision claimed as a win by both parties, Queensland’s Supreme Court has found Adani must share confidential — if redacted — documents with activist Ben Pennings as the company pursues the co-founder of direct action group Galilee Blockade with allegations of “breach of confidence” relating to confidential information, “inducing breach of contract” and “intimidation” relating to Adani’s contractors, and “conspiracy” to injure Adani’s coal operations in Australia.

Along with co-litigator the Carmichael Rail Network (CRN), Adani instituted proceedings against Pennings more than a year ago over his role in the Galilee Blockade, seeking both damages and restraints on him using the allegedly procured confidential information. The case largely but not solely relates to divestment campaigns Adani argues resulted in integrated services company Downer Group withdrawing from negotiations to build and operate the Carmichael mine, a move it further argues forced them to build it themselves and downgrade from 30 million to 10 million tonnes of coal a year.

However, Adani Australia — now “Bravus”, a name change pretty much everyone has been happy to ignore — admitted in March it could not actually identify what information Pennings may have acquired, but in light of his work in divestment campaigns has nonetheless sought to keep a trove of confidential documents it alleges he may have used secret from him. Instead, it would hand over the more than 350 contracts to his lawyers and provide him just 10 as examples.

The June 25 decision was released publicly late last week and finds documents should be shared with Pennings on practical grounds — namely, it would be difficult for him to narrow down what information Adani believes he received, and it would be impossible for his lawyers to ask whether he received something confidential without, you know, describing it.

But some limitations will be implemented to balance Adani’s concerns — namely some information relating to pricing, names of contractors and proposed worksites will be redacted.

For Pennings, the decision means that after multiple requests since November 2020 he can finally see fundamental details of the case against him:

Now I’ve won the right to see Adani’s whole case against me, I can properly defend myself in court. I’m excited to ultimately win this case on behalf of all Australians because it threatens our political freedom. So long as Adani threatens my family and the environment we all share I will do everything lawfully in my powers to stop them.

Conversely, Adani has also claimed the decision as a win, apparently contradicting its own, more encompassing application of confidentiality to claim that allowing Pennings “restricted, and supervised, access to limited parts of our confidential information … is expressly what we had asked the court to order”.

While a highly technical element of a long, multipronged legal action, the decision cuts to multiple aspects of Adani’s legal playbook, which for a long time has gone beyond simply defending to actively pursuing individual activists, traditional owners, journalists and other global opponents.

Adani v Pennings, in short

Adani and CRN have broadly argued that Pennings, as former national spokesman and strategist for Galilee Blockade, used a confidential “mine plan” — a detailed description of works at the mine site shared only between senior executives, in-house lawyers, engineers, geotechnical staff and contractors — and related information in campaigns of “intimidation and conspiracy” that led to the withdrawal of agreements with Downer as well as transport company Greyhound Australia and engineering partner AECOM.

In an affidavit filed by Adani’s lawyers Dowd & Co, Adani and CRN detail a series of activist activities — for example, protesters erecting an aerial platform attached to drilling rigs at a confidential rail corridor at the site, and a “Dob in Adani” campaign targeting contractors and affiliates that invites people to submit information relating to works — and allege Pennings and Galilee Blockade caused the Downer Group to withdraw from negotiations for a conditional $2.6 billion contract.

They argue this caused the Carmichael mine in late 2017 to be downsized from 30 million to 10 million tonnes a year (increasing the capital cost per tonne of coal by at least 15%), and the companies’ security costs to raise 500% (from $1 million to $5 million) and insurance premiums to raise 400%. By scaring away all “tier-one contractors”, Adani also argued they reduced competition among less experienced tier-two and -three contractors resulting in contractual costs raising by at least 15%.

The latest action comes after a secret, unsuccessful attempt in June 2020 to obtain an Anton Piller order to raid Pennings’ home and search his computer for the plan. Both Queensland’s Supreme Court and Court of Appeal dismissed that request because of the distress a raid would cause him and his family and Adani’s failure to show Pennings actually had the information or that it would be at a loss without the raid.

That appeal also hit upon a handful of spurious connections between Pennings’ actions and those allegations. For example, the court found that the companies not only failed to establish Pennings personally has any confidential information, but that the “expenditure on ‘security’, whatever may be encompassed by that word, cannot be equated to expenditure that has been necessitated by the obtaining of confidential information and no attempt was made to make such a causal link”.

However, Adani was successful in obtaining an injunction in September that compelled Pennings to remove, not publish and not seek certain confidential information. The judge found Adani and CRN have a good case against Pennings — namely, for the purposes of the injunction, submitted material tends to the conclusion that “Pennings has committed and, unless restrained, will commit the tort of intimidation” — and at any rate the order would create “no prejudice to him should orders be made which, effectively, require him to act in a lawful way”.

While not a legal requirement, the case saw Pennings stand down as national spokesman of Galilee Blockade. He also offered to make the injunction permanent in exchange for Adani dropping the lawsuit for damages, which Pennings says would bankrupt him, but this was rejected.

Reversing the onus of proof

Jump to the first full day hearings on March 2, 2021, and Adani asked the court for orders that Pennings never be allowed to see or be told what “confidential information” the company alleges he received, which he argued was a reversal of the traditional onus of proof that would stop him from being able to provide proper instructions to his lawyers.

Crucially, Adani’s legal team admitted it did not actually know what, if any, confidential information Pennings had access to, and further “in order to prove breach or misuse of that confidential information, it is not necessary, and it will not be our case, to prove that the information in any one particular contract came into the possession of the defendant and that he misused it”.

The following from Justice Susan Brown is telling:

[T]o establish a breach of confidence, you have to be specific to what it is that’s breached. What is the breach and what is the information? … So to say to me, ‘Well, we want to give examples of 10 contracts because that’s the type of information that’s confidential and disclose just that, but we aren’t saying it’s confined to that’ seems to me to be arguably a misconception about a breach of confidence case.

Curiously, before the March hearing, Adani offered to settle the case and drop its claim for damages on the condition Pennings not seek court costs and be permanently bound by the previous injunction — a similar offer to one Pennings made after the September injunction, but one he ultimately declined.

Now Pennings can finally see fundamental details of the case against him and deliver a relevant defence to his legal team.

Importantly, normal court rules prevent parties from using documents for any purpose other than the processing; not to suggest he would do anything of this kind, but this would leave Pennings in contempt of court if, hypothetically and ironically, he ended up using this information, which he may not have otherwise had access to, for activism purposes.

Pennings is advised the case could drag well into 2022, ending with a six-week hearing in the Supreme Court.

The court of public opinion

While Adani would probably love to recoup some money from Pennings, the lawsuit could also be seen as a PR strategy to a) intimidate future activists and b) more broadly paint Adani as the victim of activist campaigns.

For the former, see not just Pennings’ legal costs and the threat of damages but evidence Adani tendered that it had had hired private investigators to follow his wife to work, stalked her Facebook page, and even followed Pennings walking one of his children to primary school.

On the latter, Adani has been able to rely on some friends at The Courier-Mail, an outlet that effectively holds a monopoly on print news in Queensland and once claimed “Adani the only hope for endangered black-throated finch’s survival”, curiously citing only Adani and Adani-related sources.

In Pennings’ case, a 1100-word report written last year largely from the mining giant’s perspective reported how “relentless protesters advised by a team of ex-military and a psychologist are costing mining giant Adani millions of dollars, while holding up construction with dangerous PR stunt and shame campaigns, a court has heard”. Those ex-military “advisers” had left the group years ago, although you wouldn’t know it from the article.

This touches on some contradictions over just how the company wants to position divestment campaigns; for example, the affidavit claims Pennings and Galilee Blockade were apparently powerful enough to cost the company a $2.6 billion contract — a win for activists, whatever the legal ramifications — but at the time Adani brushed off Downer’s decision and even claimed it “mutually agreed to cancel all letter of awards”.

It’s worth noting that the campaign against Pennings does not sit in isolation, and the company appears to be becoming more aggressive in terms of legal action — no matter what it may say publicly — as the climate crisis worsens and activists take on more effective and/or extreme protests.

After multiple frustrations to the Carmichael mine, Brisbane law firm AJ & Co even pledged in 2018 to be Adani’s “trained attack dog” in a proposal for an aggressive multimillion-dollar commercial deal — this being after AJ & Co helped the company bankrupt a key Wangan and Jagalingou opponent of the Carmichael mine, Adrian Burragubba, a man it has successfully banned from his ancestral lands; threatened legal action against community group Queensland’s Environmental Defenders Office and divestment group Market Forces; and applied under freedom of information to access an ABC journalist’s expenses and other documents related to revelations that Adani had come under investigation for alleged unlawful site works.

The company’s attacks on journalists are hardly limited to Australia. In India, Adani hit Economic and Political Weekly with a defamation notice in 2017 over the article “Modi Government’s Rs 500-Crore Bonanza to the Adani Group”, which shortly saw then-editor and subject of the notice, Paranjoy Guha Thakurta, quit the company.

Still, far from warning off divestment efforts, Adani’s legal attacks have only coincided with an expansion in local and global campaigns; in June, StopAdani noted that even as Adani claimed the first coal from Carmichael, the company lost three investors — Samsung, Norwegian pension funds KLP and Storebrand — following global actions over its coalmining and links with Myanmar’s military.

Locally the hearing preceded a “StopAdani Week of Action on Investors” targeting the company’s top five financial backers: BlackRock, HSBC, JPMorgan Chase & Co, State Bank of India and MUF.

Actions were organised by local groups belonging to a range of organisations — from the Australian Conservation Foundation, to Australian Religious Response to Climate Change, to Galilee Blockade — and stretched from Cairns/Gimuy to Hobart/lutruwita, out to Alice Springs/Mparntwe, the Big Pineapple on the Sunshine Coast, the whale mural at Mackay, and the Big Banana at Coffs Harbour.

Last week a StopAdani email even touted achievements that, depending on their success, could well end up in future cases:

Next: why Adani is far from alone in ratcheting up these attacks.

This series was written by Chris Woods before they began work at Victoria’s Department of Environment, Land, Water and Planning.